The Open Court Principle in the Age of Google

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Council of Canadian Administrative Tribunals Annual Conference
Privacy Issues – Panel Presentation

Halifax, Nova Scotia
June 2, 2009

Speaking Notes for Jennifer Stoddart,
Privacy Commissioner of Canada

(Check against delivery)


The Central Issue

The central issue before us is how to strike the right balance between two very important values: “open courts” and individual privacy rights. I very much appreciate the chance to exchange ideas with this audience about reconciling these values.

It has long been a central tenet of our legal system that justice be administered in a fair and open manner. Until recently, that openness was limited by what has been called the “practical obscurity” of paper. We have now moved from using paper to post the proceedings of our courts and tribunals to using digital posting via the Internet. The consequences for privacy have been significant – and often not positive.

I want to make it clear at the outset that I am speaking today only in the context of administrative and quasi-judicial bodies, not the courts. The courts are not covered by the federal Privacy Act and different legal and policy considerations may apply where justice is sought through the judiciary.

The Privacy Act

However, the Privacy Act does apply to many administrative tribunals and quasi-judicial bodies. Through the Act, Parliament made a conscious decision to impose specific rules on these bodies about their handling of personal information. Similar controls have been imposed by many provincial legislatures and territorial councils on tribunals in those jurisdictions.

The impact of the Internet on privacy in justice matters can be seen in a newspaper story that came across my desk not too long ago. The story was about B.C.’s new online court records system.

The online system permits searches for information about civil and criminal proceedings involving anyone. You can even check to see whether someone has been slapped with a speeding or parking ticket.

The system became so popular that it became difficult to get access to it because of the volume of online traffic. There was a digital lineup for access.

Digital Lineup vs. Physical Lineup

One B.C. privacy advocate noted that he’d never heard of a lineup around the block at the court registry to get access to such information. Indeed, the limitations imposed by paper-based records had simply made it too much trouble to sort through such records before.

With online access, you can be both a very intrusive snoop and a very lazy couch potato.

Purpose

I don’t think that anyone is claiming that this greatly increased thirst for personal information about others represents a pent-up demand purely for a valid societal purpose. Instead, it probably reflects other, often much less noble, ends – the unbounded and sometimes prurient curiosity of some members of the public and the interest of others in exploring the potential of this online source for commercial exploitation or, in some cases, criminal gain through identity theft.

The easy online availability of this information might also facilitate discrimination, harassment and stalking.

In law school, we all learned cases by individuals’ names. We often hear that the use of names is a necessary part of truth-finding and in accordance with the fundamental “open court” principle.

This is an important part of our legal system based on the historic principle that that the public must be informed about, and be able to scrutinize decision-making processes to ensure they are fair.

However, I am not convinced that the broad public needs to know the names of individuals involved or requires access to intimate personal details through decisions posted widely on the Internet.

Investigations

In 2007-2008, my Office completed its investigation into 23 complaints about the disclosure of personal information on the Internet by seven bodies created by Parliament to adjudicate disputes. We have received further complaints since then.

These administrative and quasi-judicial bodies consider issues such as the denial of pension and employment insurance benefits, compliance with employment and other professional standards, allegations of regulatory violations and irregularities in federal public service hiring processes.

Many other administrative and quasi-judicial bodies post online reasons for decisions that link identifiable individuals with a great deal of sensitive personal information, but my Office has not yet received complaints about them.

Information at Risk

Decisions of administrative and quasi-judicial bodies often contain personal details that not many people would be comfortable sharing widely: salaries, physical and mental health problems, detailed descriptions of disputes with bosses and alleged wrongdoing in the workplace. Other information of questionable relevance is also often included in decisions of these bodies – the names of participants’ children, home addresses, places and dates of birth and descriptions of criminal convictions for which a pardon has been granted, for example.

Many complainants told us they were distressed to discover – often with no prior notice – that personal information about them was available on the Internet for neighbours, colleagues and prospective employees to see.

A long-ago transgression or temporary lapse in judgment could continue to haunt an individual for many years. Even if no past transgression was involved, the nature of the personal information that was being disclosed could be deeply embarrassing.

Loss of privacy/access to justice

The lack of concern by tribunals and other bodies for privacy may well limit access to justice. The risk of having personal details made public may make people reticent to assert their rights in administrative and quasi-judicial proceedings.

Given the many areas of our lives touched by such bodies, this effective lack of access to justice could be profoundly disabling for those who need disputes with governments, employers or service providers resolved.

Public interest

In some cases, of course, there is room for argument about the need to provide personal information in decisions of tribunals. The Privacy Act in fact allows for this in appropriate circumstances.

A recent Manitoba case – one beyond the jurisdiction of the Privacy Act – shows one possible situation where some publicity may – and I stress may – be warranted.

The CBC reported early last month that the Manitoba Nurses Union had passed a resolution asking the Manitoba College of Registered Nurses to stop revealing the identities of nurses who had alcohol and other substance dependencies. The issue apparently arose after the College published the names of four disciplined nurses who had been accused of abusing alcohol and other substances.

Was the publication of names in this case necessary to protect the public, or was it an unnecessary infringement of the personal health information of these nurses? Even if the issue in the disciplinary cases was performance, would it have been necessary to reveal alcohol and drug usage?

It is important to ask: Does the public at large need access to this information or would a more targeted disclosure on a need-to-know basis be sufficient?

In many cases, publishing individuals’ names on the Internet has significant and unintended punitive effects beyond the mandate of statutory tribunals. It’s up there forever.

We understand and respect the need for transparency in decision-making processes and the need for tribunals to educate people about their work and their issues.

But remember that the open court principle is intended to subject government institutions to public scrutiny, and not the lives of the individuals who appear before them.

Possible solutions

My Office has taken the position that the public interest in accessing information about tribunals’ proceedings does not obviously or necessarily extend to obtaining access to identifying information about individual participants.

It will most often not interfere with the open court principle if only de-personalized decisions that do not reveal the identities of participants are made available to the public.

As an alternative, tribunals could remove all personal information that would otherwise be found in reasons for decision made available to the public.

However, simple suppression of direct and obvious identifiers such as names is likely to represent the most efficient and effective means of ensuring individuals’ privacy is properly protected. This method of protecting privacy poses no significant threat to tribunals’ independence and ensures that the facts and issues in individual cases may be fully and transparently debated.

Where there is a genuine and compelling public interest in disclosure of identifying information that clearly outweighs the resulting invasion of privacy, institutions have the discretion under the Privacy Act to disclose such information.

For example, there may be a case for a tribunal to exercise this discretion where the public has a compelling interest in knowing the identity of an individual who has been found guilty in disciplinary proceedings, or of someone who poses a potential danger to the public.

Similarly, if a law or regulation authorizes the disclosure of personal information, the Privacy Act does not prohibit that disclosure. In this way, the Act recognizes the right of Parliament to create disclosure regimes that reflect the mandate of a particular tribunal and the demands of the open court principle.

Looking Ahead

I am disappointed to report that, despite the clear intention of Parliament in extending the federal Privacy Act to cover personal information handled by administrative tribunals and despite the compelling case for preventing the release of identifying information in many cases, the problem of excessive disclosure persists.

Even after being advised of privacy concerns with their policies and practices, most government institutions have been reticent to change them. In fact, some government institutions told my Office that they plan to continue posting sensitive personal information as they always have.

Others took important but incomplete steps towards improved compliance with the Privacy Act. As a result of our investigations, some institutions have implemented technical measures to prevent the names of individuals who participate in their decision-making processes from creating “search hits” when typed into major search engines. Others have agreed to use initials in place of individuals’ names.

The varying responses to the recommendations of my Office mean that, even among those institutions that my Office has investigated, there remains inconsistent privacy protection for Canadians.

We are not empowered under the Privacy Act to bring this matter before the courts for further guidance. However, our Office is committed to continuing to work with the government institutions which have been reluctant to implement all our recommendations to protect personal information. We hope that by maintaining a constructive dialogue, we will be able to persuade these organizations to take the steps necessary to protect Canadians’ privacy.

We will be meeting on this issue with officials from both Treasury Board and the Department of Justice.

As my colleague David Loukidelis, the Information and Privacy Commissioner for British Columbia, said in a speech to the Canadian Bar Association last November: “No one suggests that privacy should defeat the vital principles of openness and accountability in tribunal processes. That said, where individuals are caught up in tribunal processes, their privacy deserves respect and protection. This is not a zero sum game.”

Open court, not open season

I don’t profess to say that the balance between openness and privacy will always be easy to attain. However, I remain very uncomfortable with any interpretation of the open court principle that equates it to open season on the personal information that is placed before tribunals and other quasi-judicial bodies in the age of Google.

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